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The Commoner.
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KOVBMBER IT, 1111
phrased to pre veal the intermedling of the na
tional ..government with the states, and quotes
Mr. Madison as his authority.
George Ticknor Curtis (Const History of U.
tL, Vol I, p. 363) declares this section to be
for the security of the states.
John Randolph Tucker ("United States" Vol.
II, Sec. 311) declares- that the power of the
Initiative in the national government would
make this clause, intended for protection, an
accuse for destructive invasion."
If the promisees ore satisfied how shall the
guarantor intervene?
A state will not move unless it regards the
offending state as violating republican forms,
and it will bo guided in making its demand not
upon the judgment of the United States but
upon its own interpretation of the meaning of
republican ferms.
It might even bo that republican forms were
plainly involved, yet a dependance upon tho
ability of the people to restore them, might pre
vent another state or even the state itself from
asking national interference. The states might
not desire to make a demand for enforcement,
and if the promisees were all satisfied, there
could be no basis for enforcement. It may be
a matter of mighty practical importance whether
the United States can interfere of its own mo
tion in a state's affairs under this article, and
if it can not It seems to be plain, that another
state and not this court has the solo right to
judge whether the republican form is involved
and whether tho United States should be called
upon to interfere.
2. A Citizen Can Not Demand Enforcement
The appellant has no standing in this court.
The guaranty is not to a citizen, but to every
state of the union. Whether the political or-
ganization called the state or the people in
general is meant to be the object of guaranty
is Immaterial. Tho state alone can call for
the guaranty.
Later in the article the call for assistance
against internal violence is limited to legisla
ture or governor, but when the guaranty is
demanded it seems clear that a majority of the
people or their recognized representative
authority may call for it and none other. No
one citizen can appeal even to congress to
enforce thiB guaranty. A minority would bo
insufficient and much less can such an appeal
be made by an individual to this court to ignore
the recognized coarse of self-government in
any state.
It Is notable that the promise to "protect
against domestic violence" is a direct promise
imposing an original obligation upon the United
States. Yet there Is a specific limitation upon
the persons who can call for the protection.
It would be the very farce of construction
should it be held that upon a collateral obliga
tion to states, a private citizen of such state
could set the machinery of the national govern
ment or of this court in motion against a state.
Eight per cent of the voters of Rhode Island
form the constituency of a majority of the
senators in the Rhode Island legislature; thus
a fraction of over 4 per cent of the voters can
block all legislation.
A priori this would be clearly the denial of
a republican form; yet it would be a surprise
should one citizen of that state appear here or
before congress to demand enforcement of the
guaranty against such forms.
The admission of a private citizen to ask for
the enforcement of this guaranty must apply
to congress as well as to this court. One
citizen could always be found to serve the pur
pose of any cabal, which might wish to turn
the armies of the nation into a state to change
alleged unrepublican forms. A mere pretence
would suffice. Shortly stated: the United States
and its departments have no powers under this
article except upon the application of some
state of the union.
The doubts prevailing in 1887 as to the safety
of the states against a powerful centralized
government emphasize this construction, and
tho careful safeguards that provide against
volunteer "protection" lend strong support.
F. THE METHOD OF ENFORCEMENT
1. By Congress
Clearly, this guaranty can only be enforced
by the United States, which makes the promise.
It Is a political obligation.
In the case of new states it has been the
practice from the beginning, for congress to
enforce this guaranty by specifically requiring
that the constitution of such state shall be "re
publican in form" and "shall not be repugnant
to the constitution of the- United States and
the principles of the Declaration of Indepen
dence." Such Is the established formula.
It Is inconceivable that tho congress should
be recognised In the enforcement of this
guaranty against now states, and not bo tho
power authorized to enforce tho guaranty
against an existing state.
Congress and the president hold the execu
tive machinery; they alone can employ tho
army and navy, tho arsenals and fortifications,
tho marshals, tho militia, tho national treasury;
all essential to the enforcement of this contract
with tho states.
Congress and tho president are "tho Unitod
States" In contemplation of our organic forms.
In congress all intorosts aro represented whon
tho question of enforcement arises. Tho re
spective states have their representatives there
to admit or protest.
2. Tho Remedy is Positive
Tho method of executing a guaranty to a
state is not to ignore tho state and Its regular
acts until it gets back to the prescribed forms;
a positive remedy is involved In tho guaranty;
a remedy by restoration not by nullification.
The guaranty contemplates an Invasion of
"republican forms," duly protested by ono of
the states. The duty of the United States is
then to restore thoso forms.
Presumably the violation of form must bo
const! tiitional or statutory, and tho duty of tho
government would be to demand a repeal of
such provisions and the enactment of proper
forms.
A case in point would be a constitutional
recognition of heredity in official tenure. The
United States could compel a repeal. A self
perpetuating legislature could bo doprlved of
Its powers.
Until, however, the United States intervenes,
tho ordinary operations of government and
laws will be recognized.
The guaranty is not that there shall never bo
in any state forms which are unrepublican, but
that If there be such, then upon proper demand
of a state, the required forms will bo restored.
3. Nnlliflcatiom of Existing Laws Not the
Remedy
There Is nothing in this section four which
suggests that so long as an unrepublican form
is de facto recognized in the state itself, tho
enacted laws and settled constitution are to be
nullified. A status Is merely created upon which
the state Is entitled to resort to tho United
States for tho restoration of republican form;
till then neither the United States nor this
court can be required or allowed to decide at
what point republican forms become inopera
tive and to ignore the legislative, executive and
judicial products of such Irregular machinery.
If such were the case all the laws of eight states
which have utilized the initiative and referen
dum would bo prima facfe void. Executive
acts and judicial findings involving the Initia
tive and referendum would be illegal. No such
wholesale nullification is contemplated in a
guaranty.
"Among those matters which are implied,
though not expressed, Is that the nation may
not In tho exercise of Its powers, prevent a
state from discharging the ordinary functions
of government."
"The constitution provides that 'the United
States shall guarantee to every state in this
union a republican form of government. That
expresses the full limit of national control over
the internal affairs of a state."
South Carolina v. U. S. 109 U. S. 261.
Tho guaranty shortly stated Is: If the states
will enter into this compact and create a cen
tralized power through a contribution of sov
ereign power by each and all the stales, this
United States will not impose upon you any
unrepublican forms, and if from any source
these forms be imposed upon you, wo guaran
tee to restore them; but it can not be "Implied
that the United States by any department, will
ex mero motu or in behalf of a private litigant,
Ignore all .tho regular acts of a state govern
ment which may, in the judgment of the United
States, date from tho beginnings of unrepubli
can forms.
4. Tho Guaranty is of "Form" Not of Practice.
Colorado has been recently under martial
law; yet the utmost which could bo demanded
was that the United States by its political in
struments, should suppress domestic violence
upon the request of the legislature or governor.
Had a dictator assumed tyrannical functions,
it is submitted that if the constitution contained
the requisite republican forms, the United
States could not be called upon to redeem its
guaranty, inasmuch as the requisite forma
oxistod and it only remained for tho people
to insist upon them. While in so insisting tho
pooplo may require tho protection of tho United
States under tho final clause of Article 4, Sec
tion 4, tho form alone of lawful government is
assured by tho first clause; anarchy and othor
unrepublican conditions aro only reachable on
tho constitutional call of tho stato for protec
tion against domestic violence. If through tho
established forms tho stato asks no redemption
of tho guaranty, practical annrchy Is no concern
of the United States and certainly not of this
court under the guaranty clause.
A fortiori peaceful behests of tho majority in
Oregon under forms satisfactory to them must
bo honored by tho United States and this court
until the guaranty is duly demanded by a stato,
B. JURISDICTION OF THE COURTS
1. Stato Courts
The supreme court of Oregon has decided
that tho law of which complaint is hore made
is constitutional and appellant is not allowed
In this court to question the validity of IU
state constitution.
"Tho constitution of the Unitod States
enumerates specially tho cases over which its
judiciary is to have cognizance, but nowhore In
cludes controversies between tho pooplo of a
stato as to tho formation or chango of tholr
constitutions."
"If It be asked what redress have tho people
if wronged in these matters, unless by resorting
to tho 'judiciary, tho answer is, they havo tho
samo as in all other political matters. In thoso
they go to tho ballot-boxes, to tho legislature
or executive, for tho redress of such grlovances
as aro within the jurisdiction of each, and, for
such as are not, to conventions and amend
ments of tho constitution."
Luther v. Borden, 7 How. 54.
It is not denied that tho legislature had
power to repeal the act of which appellant com
plains, nnd that appellant has not secured action
from this body, which is still open to It to over
turn Uils enactment.
When called upon to review tho legality of
logal enactments in Texas, this court expressed
itself in language well applicable to tho case
at bar:
"The state' (of Texas) Is in full possession of
Its faculties as a member of tho union, and Its
legislative, executive and judicial departments
are peacefully operating by tho ordinary and
settled methods prescribed by its fundamental
law. Whether certain statutes havo or have
not binding force, It is for the stato to de
termine, and tho determination of itself Involves
no Infraction of tho constitution of tho United
States and raises no federal question giving the4
courts of tho United States jurisdiction."
Duncan v. McCall, 139 U. S. 449.
2. United States Court
"It was long ago settled that tho enforce
ment of this guaranty belonged to the political
department."
Taylor v. Beckham, 178 U. S. G78.
And tho court adds that after appeal to tho
state tribunals "any remedy Is to be found in
the august tribunal of tho people, which Is con
tinually sitting and over whose judgment on the
conduct of public functionaries the courts exer
cise no control."
Tho opinion of Chief Justice Taney in the
case of Luther v. Borden, (7 How. I) Is ono of
the monuments of his masterly ability, and
with apparent prescience he has covered the
Issues of jurisdiction here involved. Should his
reasoning in that case bo not followed and
should this court declare the constitution of
Oregon invalid as here claimed, tho political
effects might be even farther reaching than
those of this great justice's opinion in tho Dred
Scott case.
With respect to the enforcement of Art IV,
Sec. 4, the chief justice says:
"Under this article of the constitution (Art.
IV, Sec. 4) it rests with congress to decide what
government is the established one in a state.
For as tho United States guarantee to each stato
a republican government, congress must neces
sarily decide what government is established
in tho state before it can determine whether it
is republican or not. And when the senators
and representatives of a state are admitted into
the councils of tho union, the authority of the
government under which they are appointed,
as well as its republican character, is recognized
by tho proper constitutional authority. And Its
decision Is binding on every other department
of tho government, and could not be questioned
in a judicial tribunal."
"It rested with congress too to determine
upon the means proper to be adopted to fulfill
this guarantee. They might, if they had deemed
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